March 17, 2010

The Georgia Supreme Court has reversed by 5-to-2 a Fulton County court order and upheld as constitutional a provision in the 2005 Tort Reform Act that in some instances requires one side in a lawsuit to pay the other side’s attorney’s fees. The Court brushed aside claims that the fee-shifting provisions in the Act effectively deny poor litigants access to the courts, flatly concluding that there is no right of access to the Georgia Courts.

The case began with a couple’s lawsuit against Chuck Smith, former defensive end for the Atlanta Falcons football team. According to briefs filed in the case, in 2005, Smith’s wife took his 11-year-old daughter to have her hair chemically relaxed at Salon Baptiste, a hair and nail salon owned by Cheryl Baptiste.The next week, Baptiste and her husband learned that Smith, hosted a sports broadcast on WQXI radio, had made disparaging remarks on air about Baptiste and her salon.

In January 2006, the Baptistes sued Smith for defamation and other civil wrongs. In July 2006, the Smiths offered the Baptistes $5,000 to settle, but the Baptistes rejected the offer. In February 2007, the trial court ruled in the Smiths’ favor, granting them judgment on all counts raised in the Baptistes’ lawsuit.

While the Baptistes’ appeal was pending, the Smiths filed a motion asking the court to require the Baptistes to pay their legal fees, based on the “offer of settlement” statute that is part of the Tort Reform Act. Under the statute, if the Baptistes were ultimately to lose their case, or if they won but the judgment was less than 75 percent of the Smiths‟ offer, they would have to pay Smiths’ attorney’s fees. In response, the Baptistes argued that the statute is unconstitutional and denies poor people the right of access to the courts even when they have a legitimate cause of action.

In March 2009, the trial court ruled in their favor and found that the “offer of settlement” statute is unconstitutional. The Smiths then appealed to the Georgia Supreme Court.

In a majority opinion written by Presiding Justice George Carley (data), the high court has reversed the trial court’s decision and ruled in favor of the Smiths. The Georgia Constitution states that “no person shall be deprived of the right to prosecute or defend, either in person or by an attorney, that person’s own cause in any of the courts of this state.” But contrary to the trial court’s ruling, that constitutional provision “was never intended to provide a right of access to the courts, but was intended to provide only a right of choice between self-representation and representation by counsel…,” the opinion states. “Thus, there is no express constitutional … right of access to the courts under the Georgia Constitution.”

The statute is not an unconstitutional specific law, as the Baptistes contend, but rather a general law whose “clear purpose” is to “encourage litigants in tort cases to make and accept good faith settlement proposals in order to avoid unnecessary litigation.” The majority underscores the importance of the “doctrine of stare decisis,” or the doctrine of precedent, under which a court is expected to follow earlier judicial decisions on the same topic. The majority points out that in one of its earlier decisions, the state Supreme Court quoted a statement from the 1877 Constitutional Convention, “which clearly shows that the reason for the adoption of the original version of the provision now in issue was to ensure a person’s right of self-representation.”

In the dissent, Chief Justice Carol Hunstein (data) writes that the Georgia Constitution “plainly and unambiguously accords the people of this State the fundamental right to access the courts.” But the majority has constricted its scope “to a mere right to self-representation in the courts.” And the sole basis for the majority’s interpretation is a report of the 1877 Constitutional Convention written by a reporter for The Atlanta Constitution. “The majority’s reliance on an unofficial journalist’s account is in direct contravention of our precedent refusing to accept as authority even the actual videotaped recordings of statements made by legislators themselves because those recordings are not official accounts on which this Court may rely when interpreting our statutes,” the dissent says.

As the trial court held, the statute “serves to impede, if not outright deter, plaintiffs with meritorious causes of action from filing suit to obtain judicial resolution of their grievances because of the financial peril in which that statute places them.” Justice Robert Benham joins in the dissent.

In a 5-to-2 vote, the Supreme Court of Georgia has ruled against a man convicted of false imprisonment of a minor and upheld the state’s sex offender registration law as constitutional.

When Jake Rainer was 18, he and three others planned to rob a 17-year-old girl after arranging to meet her to buy some drugs. When she got into their car to complete the transaction, they drove away. They stopped twice, trying to steal her purse and push her out of the car. Eventually they succeeded. Witness identifications later led to the arrest of the four men.

In 2001, Rainer pleaded guilty in Fulton County to false imprisonment and robbery and was sentenced to 10 years, with five in prison and the rest on probation. After serving a year on probation, he learned for the first time he was required to register as a sex offender. See Rainer’s Online Sex Offender Profile. Rainer challenged the law’s application to his case because the crime he was convicted of did not involve any sexual activity. The State filed a motion to dismiss his constitutional challenge, and the trial court granted it, finding that the registration statute – Official Code of Georgia 42-1-12 – is constitutional. Rainer then appealed to the state Supreme Court, arguing that the requirement he register as a sex offender constitutes “cruel and unusual punishment” and violates his constitutional right to due process because it is overly inclusive.

But in today’s opinion, written by Justice Harold Melton (data), the majority states that Georgia’s sex offender registration requirements “are regulatory, and not punitive, in nature.”

“Specifically, because the registration requirements themselves do not constitute punishment, it is of no consequence whether or not one has committed an offense that is … sexual in nature before being required to register.” The law defines a sexual offender as anyone “[w]ho has been convicted of a criminal offense against a victim who is a minor or any dangerous sexual offense.”

“Under the statute, one only needs to have committed a … criminal offense against a victim who is a minor … in order to meet the statutory definition of … sexual offender for purposes of registration,” the majority states. The law is not overly inclusive, the majority finds. Rather, it “advances the State’s legitimate goal of informing the public for purposes of protecting children from those who would harm them.”

“[T]he statutory scheme creating the sex offender registry seeks to protect children not from all harm, but from harm by those who have committed certain designated offenses,” the dissent says. “[A]lthough a sexual offense may occur during a kidnapping or a false imprisonment, such conduct would clearly be covered by other provisions of the statute. Rainer should not be characterized as a sex offender, she states in the dissent. “I am a parent. I am a grandparent. I care about the children of this state. But I am also obligated to care about the constitutional rights of all those affected by its laws.” Justice Robert Benham joins in the dissent.

March 12, 2010

A survey of the Georgia Supreme Court’s 2010 opinions reveals that Chief Justice Hunstein is increasingly at odds with her fellow justices. Justice Hunstein has become the Court’s most frequent dissenter. Her ideological differences with fellow justices is most evident with respect to the rights of criminal defendants. Justice Hunstein appears less likely to affirm criminal convictions because of procedural irregularities than other justices.

Justice Hunstein has dissented in seven cases so far in 2010. See data on Justice Hunstein’s 2010 votes. Additionally, Justice Hunstein is demonstrating an increased tendency to issue concurring opinions, or concur in judgment only without joining the majority opinion. She has concurred in three cases thus far in 2010. By comparison, Justice Hines has dissented once and concurred in two cases. See data on Justice Hines’ 2010 votes.

What accounts for this trend? Is Justice Hunstein “out in left field”? The apparent trend may regress to the mean as the Court issues more opinions this year. Perhaps serving as Chief Justice has inspired Justice Hunstein to assert greater ideological independence. Another factor could be that the conservative shift in the Court caused by Justice Nahmias replacing Chief Justice Sears has increase the distance between Justice Hunstein and the center of the Court.

Two concluding thoughts to soften what may appear to be a criticism of Justice Hunstein. First, the Georgia Supreme Court still maintains a high degree of unanimity. Despite an apparent increase in her willingness to issue dissenting opinions, Justice Hunstein nevertheless casts a majority vote in over 90% of cases before the court.

Second, dissent is good. The State Supreme Court confronts complex issues and enjoys substantial discretion in the cases it hears. Based on the trial and intermediate appellate court records, legal minds disagree on the merits of cases far more than the tally of Georgia Supreme Court voting would indicate. One may wonder if the court is simply too collegial. As Henry Ford one said: “If two people always agree, one of them is unnecessary.” If seven Justices agree all the time, is that a good thing?

March 9, 2010

The Georgia Supreme Court has reversed the murder convictions and life prison sentences given to Steven Manley and Robert Allen for the 2007 shooting death of Emmett Whatley in DeKalb County.

According to the evidence and briefs filed in the case, Whatley, known as “Black,” lived in a house on Chapman Circle with his 12-year-old son. He had a recording studio in the basement, and frequently had friends over to play music. Alexandria “Alex” Phillips was one of them. According to prosecutors, in January 2007, Phillips told her neighbors, Steven Manley and Cody Allen-Brown, about Whatley’s studio, and they asked if Whatley had any guns or money. She told them she knew he had money. Phillips testified that the two men then decided to “hit a lick,” or rob Whatley, and she helped them set it up. Her boyfriend, Robert Allen, was also involved. Around midnight on Feb. 8, 2007, the three men drove in Allen’s Lincoln Navigator SUV to Whatley’s house, calling Phillips from the car for directions. After watching Whatley leave with a woman, the men parked and waited until Whatley returned and got out of his car. When he tried to run, Allen-Brown shot him in the back. The men then left, and Whatley bled to death. The next morning, his son found him in the front yard with his keys and two cell phones. Phone records led police to Phillips, whose phone records and statements led them to the three men.

In October 2008, a jury convicted Manley and Allen of murder and they were sentenced to life in prison plus five years. (Allen-Brown was also convicted of Whatley’s murder.)

In a plea deal, Phillips pleaded guilty to aggravated assault and received a 6-year prison sentence in exchange for her testimony against the men. Phillips could have been convicted of Whatley’s murder along with the others and received a life sentence, which would require her to serve 30 years behind bars before becoming eligible for parole. Her 6-year sentence, on the other hand, did not require her to spend any particular amount of time in prison before she was eligible for parole.

Robert Allen (Source: GA DOC)

In an opinion written by Justice Harold Melton (data), the Supreme Court found that the “evidence was sufficient to enable the jury to find Manley and Allen guilty of the crimes for which they were convicted beyond a reasonable doubt.” But the trial court made several errors, and “we must reverse in both cases.”

In their appeal, attorneys for both Allen and Manley argued the trial court erred in not allowing them to fully cross examine Phillips about the deal she got in exchange for testifying against them. “Based on the facts of this case, we agree,” today’s opinion states. “Allen and Manley were prevented from fully exploring the possibility that Phillips was biased in favor of the State due to her parole disparity…,” the Court held. “This evidentiary whipsaw potentially misled the jurors, and, as a result, requires that both convictions be reversed.”

In the decision, the high court overruled its 2003 decision in Hewitt v. State, along with any other cases that relied on it, to the extent that they could be interpreted to mean “that a witness may never be cross-examined regarding eligibility for parole in order to show bias in favor of the State.”

The Supreme Court also found that the trial court erred in restricting the cross-examination of the informant who implicated Allen-Brown in the killing to determine whether he might be biased in favor of the State. “The co-defendants should have been allowed to question the informant about the basis of his first offender plea for these purposes,” the opinion states.

Finally, the trial court should have suppressed Manley’s statement to police that he was in Whatley’s subdivision the night of the murder to buy drugs. More than once, the record shows, Manley stated he wanted a lawyer present, yet detectives continued to interrogate him. “Under these facts, Manley unambiguously requested the presence of his lawyer, and any questioning should have stopped immediately,” the opinion stated.

In a special concurrence, Chief Justice Carol Hunstein (data) agreed with the final judgment but takes issue with the overruling of case law. “No reasonable person could possibly interpret Hewitt v. State…as the majority does, i.e., as supporting the proposition that a witness may … never” be cross-examined regarding eligibility for parole. Nor can it cite to any case in which Hewitt was so interpreted to support this proposition. Accordingly, there is no basis whatsoever for the majority’s insistence on overruling this case…” Justice P. Harris Hines joined in the special concurrence.

February 2, 2010

In a split 4-to-3 decision, the Georgia Supreme Court has ruled against a White County woman who claims the lower court was wrong to conduct the final hearing in her divorce without her being present.

The decision reveals a deep divide among the justices on a fundamental matter of family law: how trial courts are to conduct hearings to finalize divorces. It is the first Family Law Pilot Project decision in over a year not unanimously decided. Data on Family Law Pilot Project Cases.

According to the record, in June 2008, Otis Dan Ellis filed for divorce from Bonnie Lou Ellis, his wife of 14 years. She was not represented at the time by a lawyer, and she failed to file any pleadings in response to her husband’s complaint.

Subsequently, Mrs. Ellis hired Hammond Law as her attorney, although he too did not file a response. According to Mr. Law, the husband’s attorney (Brett Turner), assured Law that Mr. Turner would notify him when the final hearing in the divorce was scheduled. But by the time the hearing occurred, the husband had hired a second attorney, Carol Sheppard, who claimed she had no knowledge of any agreement to notify the wife’s attorney. A week after entering the case, Sheppard filed a motion to enter a final judgment of divorce based on the husband’s pleadings and without holding a hearing on the evidence. The trial court granted the motion, making the divorce decree final.

In February 2009, Law filed a motion for new trial on behalf of the wife, based on the alleged agreement made by the husband’s first attorney to provide him with notice of any final hearing date. The superior court denied the motion, finding that under the law, the wife had waived the right to receive notice by failing to file responsive pleadings.

“Therefore, in this case, Wife waived any notice regarding the final hearing by failing to file a responsive pleading, and the trial court properly denied her motion for new trial,” according to the majority opinion, written by Justice Harold Melton (data). Georgia law states that “the failure of a party to file pleadings in an action shall be deemed to be a waiver by him or her of all notices, including notices of time and place of trial and entry of judgment…”

As a general rule, the majority opinion states, “when a defendant in a divorce action fails to file defensive pleadings, the divorce is, by definition, uncontested. Failure to file defensive pleadings constitutes waiver of notice of the hearing on the final decree.” The opinion continues: “The bottom line in this case is that the trial court had evidence on which to base its ruling.” As a result, there was no judgment by default in this case, which state law prohibits in divorce cases.

But in dissent, Chief Justice Carol Hunstein (data) writes that what the trial court did “was clear error.” It entered judgment based solely on the husband’s motion without holding a hearing on the evidence. The only evidence was his two-page complaint and an affidavit about his finances, which provided no evidence regarding the couple’s joint property.

“Notwithstanding this dearth of evidence, the trial court, apparently of the belief that Wife’s failure to file responsive pleadings entitled Husband to decide how the parties’ property should be divided, unquestioningly approved the divorce decree drafted by Husband’s attorney,” the dissent says. “Not surprisingly, the decree awarded Husband essentially the entire marital estate… Simply stated, the trial court gave Husband everything he wanted, without any evidence to support a finding that such division was equitable.” Furthermore, the dissent says, the “swift efforts” by the husband’s second attorney to obtain a final judgment without notice to the wife or her attorney “appear alarmingly calculated, if not deliberately blindsiding.”

“In sum, because the divorce decree is unsupported by evidence, and because the manner of resolution of this case violated basic notions of fairness and professionalism, I must respectfully dissent.” The Chief Justice’s dissent was joined by Presiding Justice George Carley (data) and Justice Robert Benham (data).

The Supreme Court of Georgia has reinstated the death sentences given to a Jackson County man for the 1997 murders of his former wife and her boyfriend.

Donnie Cleveland Lance was convicted in 1999 of killing Sabrina “Joy” Lance and Dwight “Butch” Wood and sentenced to death for each murder. In 2002, the state Supreme Court unanimously affirmed the convictions and death sentences. But the following year, Lance filed a petition for a writ of habeas corpus – a civil proceeding that gives already convicted prisoners another chance to challenge their case in the county where they’re imprisoned. In April 2009, the habeas judge upheld Lance’s convictions but overturned his death sentences, finding that his trial attorney had provided “ineffective assistance of counsel” for failing to investigate claims that Lance had mental health problems. The state attorney general, representing the prison warden and on behalf of the State, appealed the ruling that threw out the death penalty, while Lance’s attorneys appealed the ruling that upheld his murder convictions.

According to evidence at trial, Lance had a history of violence against his wife, including electrocuting her with a car battery, beating her with his fist, a belt and a handgun and threatening her with flammable liquid and a chain saw. Joy’s father testified that just before midnight on Nov. 8, 1997, Donnie had called looking for Joy, and he told him she wasn’t there. Lance went to Wood’s trailer home, kicked in the front door and shot Wood twice with a shotgun, killing him. He then beat Joy with a shotgun with such force that the gun broke into pieces and her face was “utterly unrecognizable.” Lance later told a friend that his ex-wife, whom he called a derogatory name, would not be coming that day to clean the house and that both Joy and her boyfriend were dead. After his arrest, Lance bragged to an inmate that “he hit Joy so hard that one of her eyeballs stuck to the wall.”

In a 29-page decision, the high court agreed that Lance’s trial attorney “performed deficiently in failing to prepare for Lance’s trial by investigating Lance’s background.” Had the attorney investigated, he would have learned that Lance had a history of alcohol abuse, had ingested gasoline as a child, was once exposed to toxic fumes while cleaning an oil tank, had been shot in the head and had been injured in car crashes, one of which when he was fleeing police while drunk. He’d also been treated at Georgia Regional Hospital for depression. However, “[g]iven Lance’s long history of contemplating the murder of Joy Lance and Butch Wood, the manner in which he finally carried out their murders, and his utter disregard for their suffering and deaths afterward, we conclude that the new evidence of Lance’s subtle neurological impairments, even when considered together with the other mitigating evidence that was or should have been presented at trial, would not in reasonable probability have changed the outcome of the sentencing phase if it had been presented at Lance’s trial,” the decision states. “We also conclude, contrary to Lance’s arguments in his cross-appeal, that the new evidence of subtle neurological impairments would not have significantly affected the jury’s deliberations during the guilt/innocence phase.”